K.Syam Kumar vs The State Of A.P., Anr
2021 Latest Caselaw 4594 Tel

        THE HON'BLE Dr. JUSTICE G. RADHA RANI

             CRIMINAL PETITION No.3860 of 2013
ORDER:

This petition is filed by the petitioner - A20 under Section

482 Cr.P.C. to quash the proceedings in Crime No.202 of 2012 of

Central Crime Station, Hyderabad, registered against him for the

offences under Sections 255, 256, 260, 406, 409, 420, 476, 471, 474,

477 & 120-B IPC.

2. The 2nd respondent lodged a report before the police on

29.11.2012 at 4.00 PM stating that during the month of January, 2010,

he was looking to purchase a suitable property for establishing his

educational institutions to be run under the name and style of

'Gurunanak Educational Trust'. A4 and A5 were known to him for

quite some time as they were dealing in properties. In the second

week of March, 2010, A4 and A5 brought A1 to A3 and A6 to his

house and stated that A1 and A6 were considered for allotment of

several parcels of defence lands and they wanted to offer the same to

him for sale. A1 to A6 declared that A1 and A6 were serving officers

of high rank in Army and thus they got entitlement to purchase

defence lands. A1 to A6 together presented him several documents

and made him to believe that A1 and A6 were granted schedule A to

C properties and led him to enter into the agreements of sale. Out of

the said properties, schedule - C property was to an extent of

Acs.16.00 gts., and A1 offered to sell the property for a sale

consideration of Rs.70.00 crores. A-20 who was an advocate gave a Dr.GRR,J

false legal opinion and confirmed that A1 was in Army and he was

allotted surplus open lands bearing ALR No.717-E/28-(D), vide letter

No.13.3.2010 for a consideration of Rs.1.97 crores per acre and

defined other terms and conditions. He stated that A1 had been in

physical possession and enjoyment of the property with absolute clear

marketable title. He relied upon the representations made by A1 to A6

and on the legal opinion of A20 and kept paying the amount to an

extent of Rs.18.05 crores believing that A1 to A6 had title in them. On

suspicion about the demand by the accused asking him not to contact

any officials, he went to the Defence Estate Office, Secunderabad and

came to know that no such scheme was in existence whereby any

officer could transfer huge chunks of lands to individuals and the

office of the Director General, Defence Services was shifted to some

other place about 10 years ago and no office was in existence at

Ramakrishna Puram, New Delhi. He alleged that all the accused had

conspired together, forged, fabricated and counterfeited official

stamps, emblems, forging signatures etc. with a common intention and

cheated him by deceitful means. Basing on the said complaint, the

above crime was registered by the CCS police.

3. Heard the learned counsel for the petitioner and the learned

Public Prosecutor.

4. The learned counsel for the petitioner submitted that the

petitioner was a practising advocate for the past 30 years in and

around Hyderabad and Ranga Reddy District civil and criminal Dr.GRR,J

Courts. He was falsely implicated in the present case on the reason

that he had given legal opinion on one of the properties intended to be

purchased by the 2nd respondent. The property documents pertaining

to 'C' schedule property had been produced before the petitioner and

sought for his opinion. The petitioner on verifying the documents

produced before him rendered his opinion in good faith that all the

documents produced by his clients were genuine. Even if all the

allegations in the complaint were accepted to be true, they would not

constitute any offence against the petitioner. As such, continuation of

proceedings against the petitioner in Crime No.202 of 2012 of CCS,

Hyderabad, was an abuse of process of law and prayed to quash them.

5. Learned Public Prosecutor submitted that the petitioner gave

legal opinion on a fake document and the 2nd respondent believing it

to be true, acted upon it and was cheated by the accused persons and

hence, prayed to allow the trial to be continued to know the veracity

of the truth of the allegations made by the complainant.

6. Perused the record. The complainant contended in his

compliant that basing on the legal opinion given by the petitioner with

regard to 'C' schedule property, he entered into the agreement of sale

dated 16.08.2010 with A1 with regard to an extent of 16.00 Acres for

a total consideration of Rs.70.00 crores and paid Rs.1.00 crore

through cheque bearing No.941483 dated 10.08.2010 of the Union

Bank, Secunderabad to A1 as advance to which A4 and A5 acted as

witnesses. The petitioner enclosed the copy of the legal opinion dated Dr.GRR,J

05.04.2010 given by him. The legal opinion would disclose that he

verified the title deeds of the original copy of the letter dated

13.03.2010 by the Government of India Ministry of Defence, Office

of the Directorate General Defence Estate, 4, Rama Krishna Puram,

New Delhi to A1, Ex.Army (Retired Lt.Col.) for allotment of open

surplus land bearing ALR No.717-E/28(D) admeasuring

approximately 16 Acres situated at Village Bakhtwar Guda,

Hyderabad, copy of the letter No.LR/66/LAD/1367/717/07, dated

19.07.2007 regarding the above mentioned lands by the Directorate

General Defence Estate to the Director, Central Survey Office,

Hyderabad, copy of the old sketch plan of the above mentioned land,

copy of the plan for the land approximately 16 Acres situated at

Bakhtawar Guda (Toli Chowki), Hyderabad in favour of A1 and on a

perusal of the above mentioned documents, he was of the opinion that

the said property mentioned above had good, valid and marketable

title and the said documents were valid.

7. Learned counsel for the petitioner relied upon the judgments

of the High Court of Andhra Pradesh in K. Kishore Kumar Reddy v.

State1, wherein it was held that:

"4. The allegations leveled against the petitioner only indicate that he was not diligent while giving his opinion and did not follow the guidelines issued by the bank to the panel advocates, which obligate him to physically verify the documents and encumbrances therein. However, it was also alleged that the builder directly approached the petitioner, while the procedure is that the bank has to ask the opinion of the petitioner-panel advocate and as such

LAWS(APH)-2010-10-74 Dr.GRR,J

the communication between the bank and the advocate should be direct and confidential.

The said allegation is not specific, there is nothing on record to show that the petitioner without any request from the bank gave his legal opinion at the instance of the builder. The allegation therefore is imaginary and it is so in the charge sheet. The very fact that the bank relied upon the opinion of the petitioner clearly indicates that the opinion was called for by the bank. The Assistant General Manager of the de-facto complainant bank, made a complaint to the Bar Council of the State of Andhra Pradesh against the petitioner and the Bar Council in the complaint No.114 of 2006 after making a thorough inquiry into the allegations passed an order to the effect that it is not the duty of the Advocate-Respondent to identify the borrowers, it is not his part of duty to inspect the subject properties, personally identify the concerned persons, inspect and conduct searches in various offices as expected by the complainant, the only duty of the panel advocate is that he should diligently examine the documents, material placed before him by a party and offer his opinion with reference to the relevant provisions of law. Ultimately the Bar Council of Andhra Pradesh, concluded that there is no negligence on the part of the Advocate-Respondent, in the matter of giving his legal opinion, there is no prima-facie case made out against him and referring the matter to the disciplinary committee for enquiry would be an abuse of process of law. Holding as such, the Bar Council dropped further action against the petitioner.

The prosecution has not specifically indicted the petitioner that he conspired with any of the borrowers or builder or that he had any knowledge about producing false documents by the petitioners and had connivance with them in giving his legal opinion. Even if it is considered that the petitioner was not diligent while giving his legal opinion, he cannot be accused of committing any criminal offence. The allegation that the petitioner failed to exercise more care, which was required before giving his opinion, does not involve any criminal offence. Further, in the normal course, any Advocate is expected to examine the documents produced by the parties thoroughly and then he can give his opinion. In the instant case, the petitioner examined the documents produced by the parties Dr.GRR,J

and also the encumbrance certificates and gave his opinion stating that the documents are genuine and the property had marketable title. There was no occasion for the petitioner to find out whether the same property was in mortgage twice to Aryan Co- operative Urban Bank Limited, Nallakunta, Hyderabad, and Laxmivilas Bank, Malkajgiri, Hyderabad.

8. He also relied upon the judgment of the Hon'ble Apex Court

in Central Bureau of Investigation, Hyderabad v. K. Narayana

Rao2, wherein while referring to a case in Panduranga Dattatraya

Khandekar v. Bar council of Maharashtra[(1984) 2 SCC 556] it was

held that:

"29. In Pandurang Dattatraya Khandekar vs. Bar Council of Maharashtra & Ors. (1984) 2 SCC 556, this Court held that "...there is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct."

30. Therefore, the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the Bank. In the given case, there is no evidence to prove that A-6 was abetting or aiding the original conspirators.

31. However, it is beyond doubt that a lawyer owes an "unremitting loyalty" to the interests of the client and it is the lawyer's responsibility to act in a manner that would best advance the interest of the client. Merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence and cannot be charged for the offence under Sections 420 and 109 of IPC along with other conspirators without proper and acceptable link between them. It is further made clear that if there is a link or evidence to connect him with the other conspirators for causing loss to

2012 (9) SCC 512 Dr.GRR,J

the institution, undoubtedly, the prosecuting authorities are entitled to proceed under criminal prosecution. Such tangible materials are lacking in the case of the respondent herein."

9. Considering that there is a charge of conspiracy in this case

and the petitioner gave an opinion that the documents were valid and

A1 was in possession of 16 Acres of land situated at Bakthawarguda

village, Hyderabad ('C' Schedule property) and he was having a good,

valid and marketable title over the said property, basing on which the

2nd respondent - de facto complainant acted upon it and parted with

crores of rupees as advance and was cheated by A1 to A6 and the role

played by the petitioner can be known only if the investigating agency

is permitted to conduct the investigation whether he had any link with

the other accused or not, it is considered fit to dismiss the petition.

10. In the result, the Criminal Petition is dismissed.

Miscellaneous petitions pending, if any, shall stand closed

_____________________ Dr. G. RADHA RANI, J December 27, 2021 KTL